Term
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Definition
Neutral condition: (condition has not occurred)
-If condition is a fact, there can be no reasonable anticipation/apprehension
-No assault
Condition which D has no right to create:
-If condition is unlawfully imposed, the threat IS reasonable anticipation/apprehension
-ASSAULT |
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Term
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Definition
1. Intent (intending the act that causes entry)
2. physical entry (By D or D's causing an object to enter)
3. Of another
-D's ignorance or mistake is NOT a defense
-P is only entitle to nominal damages (usually $1), unless actual damages result.
Defense- Privilege...like salesperson |
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Term
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Definition
1. Intentional Act
2. to exercise dominion or control (interferes with owner's possessory rights)
3. over a person's use or possession of a personal chattel (movable object, not land)
Mistake is NOT a defense
Damages- temporary deprivation = fair rental value for time lost
damage to chattel = diminution in value |
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Term
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Definition
1. Intentional act
2. to exercise dominion or control
3. which so seriously interferes with the right of another to control it (lose it, change it, keep it for a long period, seriously damage)
-damages chattel so there is no remaining use
Damages- Fair Market Value of chattel (sentimental value disregarded) |
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Term
| Intentional Infliction of Emotional Distress (IIED) |
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Definition
1. Intentional Act (intend the act [true intent] or reasonably calculated to cause [substantial certainty] or reckless disregard)
2. Of outrageous conduct (insulting is not sufficient, objective standard, note: vulnerability of P)
3. that results in sever emotional or mental distress
Damages- Includes pain and suffering. Compensatory (including pain and suffering); punitive are possible.
Bystander- not closely related must show physical manifestations and tortfeasor must be aware of bystander
NO Transferred Intent for IIED |
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Term
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Definition
1. Intentent
2. to detain (P must conscious of the detainment and "P must not be free to leave"; can be by physical or psychological force, can be accomplished by physical act or omission)
2. In bounded area (must exist in the words expressed or physical nature)
-Shop keeper's privilege
3. without consent |
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Term
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Definition
1. Malicious Prosecution- criminal
2. Abuse of Process - civil |
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Term
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Definition
(Criminal)
1. Intentional commencement of criminal proceeding against P
2. Absence of Probable Cause for improper purpose
4. with Actual malice
5. Termination of proceeding (resolved) in favor of accused |
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Term
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Definition
(Civil)
1. Intentional commencement of civil proceeding against P
2. Absence of Probable Cause for improper purpose
4. with Actual malice
5. Termination of proceeding (resolved) in favor of D
6. Special injury- reputation does not count. Ex: You lost your job.
SPECIAL INJURY- suffered something more than the ordinary inconvenience,
English rule- must be interference with person or property. Damage to reputation is not sufficient.
American rule has not adopted this element to keep the court open to all (policy). |
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Term
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Definition
1. Insanity
2. Consent
3. Self-defense
4. Defense of third party
5. Defense of property
6. Private necessity
7. Public necessity
8. Privilege
9. First Amendment (Freedom of Religion and Freedom of Speech) |
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Term
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Definition
True Intent
-D acts with the intent/desire to produce the contact/result/consequence
Substantial Certainty
-D acts willingly/recklessly with knowledge that the consequence will result (to a substantial certainty) |
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Term
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Definition
1. Transferred Intent of the Victim
D Intent to commit tort against A, but the act results in tort against P
2. Transferred intent of CL Tort
D intends to commit CL tort A (assault) against P, D commits CL tort B (battery) against P instead. |
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Term
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Definition
Respondeat Superior: Employee/employer-master/servant
1. Was it under the scope of employment?
2. Did it further the interest of the employer?
--Under scope of employment (basically is it something your employer expects as part of employment, court likes to bend over backward to find act under scope of employment)
1. Was it under the scope of employment?
2. Was it foreseeable?
--Coming and Going Rule: Employer not responsible for employees actions/neg while he is commuting to and from work. (exceptions- on call, driving part of employment, etc.)
Generally Parent is not liable unless Parent is on notice of propensity to commit tortious conduct. |
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Term
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Definition
Negligence has four or five elements:
1. Duty
---a. In general it is not hard. It is acting carefully. Acting with care in light of the circumstances one finds himself.
2. Breach
---a. The D knowing what he was supposed to do, fail to do it or acted unreasonably.
3. Cause
---a. Actual cause
-----i. The “but for” actions. “but for” the actions of the D the P would not have suffered the harm.
---b. Legal Cause (proximate cause)
-----i. Philosophical judgment of the courts that will trace the actions of the D to a certain point and no further. Which consequences are foreseeable, etc.
4. Damages
---a. If there is no damage done to the P or the P’s property there is NO case against the D. |
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Term
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Definition
General:
Exercise the reasonable care a RPP would under the same or similar circumstances to avoid creating an unreasonable risk of harm to others.
-Stupid is not a defense
-Mentally Disabled: Still held to RPP adult standard
-Children: Reasonably prudent child of like age, education, emotional development, and life experience
--Apply adult standard of care if child doing adult activity.
-->adult activity: (1) inherently dangerous; (2) dangerous or not, if NO children engage in this activity, it is an adult activity; (3) Look at locale (ex. hunting in Arkansas is child activity, but would not be in CA)
Calculation of Risk:
Ordinary Standard of care: Reasonable Foreseeability- If no reasonably foreseeable risk of harm then RPP is not charged with guarding against that risk. --Objective
Hand Formula- Burden of Preventing injury< probability of the injury Occurring x Likelihood of serious Loss/injury = party has duty-- Use the Hand formula when the Standard of Care or duty owed is not obvious for the jury to determine if the duty was breached
NOTE: When person takes measures after the event to prevent the re-occurance of that event they are called subsequent remedial measures. Usually not allowed in court. Policy: IF it could be used against D in court, deter D from taking measures to prevent harm |
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Term
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Definition
The violation of a statute may be used to establish Breach of Duty of due care
The P must have been injured by the violation of the statute
Test:
1. Statute much have been designed to protect against
the TYPE OF HARM which occurred; AND
2. P was a part of the CLASS OF PERSONS the statute was designed to protect.
3 approaches:
1. Martin v. Herzog (majority): the duty is to obey the statute, it no enough to act as a RPP alone...strict liability (D drove car over center line and P was driving buggy w/o lights on)
2. Rebuttable Presumption: (Larger minority rule)if you show the statute was violated, the you presume the person is neg. D may rebut the presumption w/ evidence they were acting as RPP
3. Evidence of Negligence (few states, small minority rule) Rejects NPS. Violation of a statute is a piece of evidence the jury can consider and it's not mandatory. |
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Term
| Negligence per se EXCUSES OLD |
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Definition
Five excused to be applied in a negligent per se case:
1. If the violation is a reasonable one in light of the actor’s childhood, physical disability or physical incapacitation;
a. Ex: a guy is driving and has a sudden heart attack.
2. He exercises reasonable care in attempting to comply with the statute, but unable to comply
a. Lynch says he has a problem with this bc it becomes very close to negating negligence per se or undercutting it. ex: can't keep ice off the road b/c storm is so bad.
3. The actor neither knows nor should know of the factual circumstances that render the statute applicable;
a. Ex: driving along and unknown to him, his tail lights go out and someone smashes into the back of him. If the jury believes him that he didn’t know. This is excused.
4. The actor’s violation of the statute is due to the confusing way in which the requirements of the statute are presented to the public;
a. Basically the statute is confusing
5. The actor’s compliance with the statute would involve a greater risk of physical harm to the actor or to others than noncompliance.
a. Ex: There is a blizzard. A woman needs to get to work. There is snow on the sidewalk and walks on the street in the tracks left by the cars that had passed. There may be an excuse. She was acting more safely by walking in the tracks than if she walked on the sidewalk and tried to plow through the snow. It would be less safe to comply with the law.
If Negligence per se is vitiated by an excuse, drop back to RPP standard. |
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Term
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Definition
Admissible as evidence of the care owed but is never conclusive as to define what the duty is
Ex: Dempsey v. Crane: Hook crane broke injuring man. Custom was to use open hooks, but closed were known and better and could and should have been used.
-Custom is never THE standard, but always relevant. It will be evidence toward the standard. |
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Term
| Medical Standard of Care/Experts |
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Definition
Expert-Person able to testify to jury on matters unknown to the jury and layperson would not have the necessary knowledge.
Medical standard of care: The degree of care, skill, and proficiency commonly exercised by reasonably careful, skillful, and prudent (relevant professional in the same class), at the time of the procedure (strict, modified, or no locality rule) under the circumstances.
3 standards:
1. Strict Locality (minority)- limits standard of care for physicians to that of what other physicians do in the same locality. [protects small town doctors..."Conspiracy of Silence"]
2. Similar locality Test (majority)- extends standard of care to practitioners in localities similar to the one in question. [GPs were usually held to similar locality standard, but changing toward national bc info too widely available now.]
3. National Standard (modern)- extends standard of care to a national level [qualifications for the doctors to be able to testify under this standard is they have to have expertise in the same field. Today, specialist are held to National Standard, and GP will usually be too.]
---Trend is to get away from localities all together. |
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Term
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Definition
1. Res Ispa Loquitur (RIL) "Plantiff's Friend"
2. Negligence per se (violation of statute can show breach of SOC) |
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Term
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Definition
Dr. has duty to inform patient of Material Risks.
-Any risk the P would want to know about. It is the patients right to decide what they feel is materially important.
General Rule: A patient has a right to be informed of all material risks and one informed, a RPP would NOT consent to having the procedure performed then neg., even if the dr. performed the procedure correctly and carefully.
Excuses:
-Informing the patient would impair the patient or cause the patient emotional or psychological shock, then Dr. can choose not to inform the patient. (Dr. will have to prove knowledge of this fact) |
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Term
The Doctrine of Res Isap Loquitor
"The Plantiff's Friend" |
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Definition
Merely a logical inference of the occurrence of an event.
"The think speaks for itself"
2 part test:
1. Is the event the type of thing that does not occur without negligence being involved?
2. The P has eliminated all other plausible sources of negligence except for the D?
CASE TO KNOW:
Byrne v. Boadle- Barrel falls from building on P walking down the street. Barrels do NOT just fall from windows without someone acting negligent. We don't know how it happened, but there would need to be evidence that someone besides D did this, otherwise the only other way it could have fallen was due to neg. of D. |
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Term
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Definition
Element for a prima facie neg. case
P must suffer damages
Policy: Can't sue someone for negligence if you haven't actually been harmed
-Fact based analysis: Injury/death/property damage
"slam dunk" |
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Term
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Definition
1. Actual Cause (cause-in-fact; direct cause)
"but for"-One tortfeasor
Substantial factors- multiple tortfeasors, P sustains injury as a result of the negligent conduct of 2 (or more) tort feasors, and it appears that the conduct of either one alone would have been sufficient to cause the injury, both are nevertheless liable if each of their acts was a substantial factor in causing the injury. OR If Ds conduct was a substantial factor (even it not the ONLY factor) in causing Ps damage (ASK LYNCH)
2. Proximate Cause (legal cause)
-Foreseeability- Maj.= Cardozo-orbit of danger; min=Andrews- chain of events
--intervening cause-does not cut off liability for the Defendant because intervening causes are almost always foreseeable (after D's negligence and contributes to the beg in producing P's injury)
--superseding cause- does cut off liability at the point where the superseding cause occurs because it is unforeseeable (defendant is not usually responsible for a third persons' criminal conduct and intentional torts.) |
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Term
| Loss Of Chance (usually doctors) |
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Definition
• Slam dunk
• Loss of chance:
o CL: survival rate greater than 50%: recover 100%. Less than 50% you get 0%. Bc P cannot preponderate.
o Modern: all loss of chance is an asset a loss needed to be compensated. (split)
• Majority: Based on the percent. Preponderate you get 100%.
• Minority: 100% if any loss of chance. You don’t have to preponderate...ex. can prove only that your loss of chance was 10% |
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Term
| Defenses to Negligence OLD |
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Definition
1. Contributory Negligence
2. Comparative Negligence
---1. Pure/Complete Comparative Negligence
---2. Incomplete/Modified Comparative Negligence
3. Loss of Chance Doctrine
4. Seatbelt Defense
5. Assumption of the Risk (most fold into comparative negligence) Express or Implied |
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Term
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Definition
1. Pure/Complete Comparative Negligence
2. Modified Comparative Negligence |
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Term
| Assumption of the Risk (double check outline-used Linda's handout) |
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Definition
Can be complete defense in some states.
P subjectively knew about the danger but chose to continue anyway (like skydiving)
1. Express
-written or oral
-essentially a K
2. Implied
- |
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Term
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Definition
P must gather substantial portion of D who were in business of manufacturing drug (Lynch 50%+)
• Fix liability on each defendant
• Limit liability to market share |
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Term
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Definition
Minority: Dual intent. Intended the act AND intended the harm or offense
(intended act and appreciate the consequences)
Majority: P must only show that D intended the act itself
In exam, pick one and defend it. |
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Term
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Definition
i. Once P agrees to act/engage in an inherently dangerous activity, P assumes the risk of injury resulting from that conduct
ii. Express v. Implied
1. Implied consent – make an argument that ambiguous actions constitute acquiescence
iii. Informed Consent
1. Policy: hospitals stick these in to deter lawsuits
2. Note: P has the right to refuse tx
iv. EXCEPTION
1. A COA will still lie where the Ds conduct EXCEEDS the scope of Ps consent (ex: tackle during a baseball game) |
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Term
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Definition
Proportionality: When a person offers violence at you, your violence back must be proportional to the violence to you, based on an RPP standard.
-The person using self-defense must offer evidence of what he anticipated when he used self-defense.
-The force to repel the apparent threat against him.
-must be reasonably calculated to the threat, not always fist for fist, but circumstances and sizes allow room to vary. Is there are REASONABLE BELIEF?
Provocation-does not matter, damages not reduced
Deadly force- only to avoid death or serious bodily harm
Felony-Only if it's a felony that threatens life or serious bodily harm can deadly force be used
Totality of circumstances |
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Term
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Definition
Against trespasser you can use reasonable force to get someone off property except deadly force, can increase resistance if person resists from leaving.
You can threaten to use deadly for, but cannot use it...
...UNLESS castle doctrine:
-Use deadly force when protecting home at night against intruders. |
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Term
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Definition
2 views:
1. Subjective view (minority): You step into the shoes of the 3rd party. In order to act as a third party (justifably), you must have the same right, as the would-be victim.
Policy: Illogical to give protector greater right to than the victim.
2. Objective view (majority): If you reasonably perceived another is in peril you can defend the other where an RPP would.
Policy: Encourage people to help vulnerable members of society.
--Reasonable mistake is allowed under objective |
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Term
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Definition
General rule- can never be excessive
1. Parent/child- parental discipline is usually going to be okay and will only be sued when the discipline becomes abuse.
2. Teacher/student- urban areas have statutes protecting from physical discipline, rural areas not so much
3. Military-they have a right to inflict physical force until it results in excessive behavior. It cannot become sadistic. |
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Term
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Definition
Public Necessity is a doctrine that protects individuals (usually government officials) who destroy property to prevent an imminent cataclysmic event.
-Today some states allow for damages under public necessity- without the statute then no damages. |
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Term
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Definition
Private Necessity
1. D may have a right to use another’s property to protect self or others
2. NOT a COMPLETE defense/an incomplete privilege
3. If D is using the property of another out of private necessity, they will be held liable for damage they do to that property
NOTE: Vincent v. Lake Erie - double recovery? Couldn’t they factor in the fact that damages will be done to the dock into the price they charge for docking. This makes it seem like double recovery if the court allows dock owners to recover for damage. |
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Term
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Definition
Freedom of Religion:
1. Officially sanctioned practices are protected;
---a. Shunning protected (neutral, non-criminal activity)
2. UNLESS there is a strong state interest in suppressing the conduct
---a. Use of mushrooms NOT protected because drug use is a blight/malum in se act and the state has a strong interest in suppressing it EVEN when used for religion
---b. Polygamy NOT protected because the religion must yield to state’s interest in protecting and promoting monogamous family unit. Marriage is a core value and the state has interest in protecting it
Freedom of Speech:
1. Protects speech that attacks Ps who thrust themselves into public eye
--a. Where the P is a public figure i.e. a vortex thruster, the D must act with ACTUAL MALICE to be liable (may be involuntary; one-time)
i. Actual Malice – info must be (1) published, (2) false AND (3) D must know it was false/act recklessly as to its truth (High degree of certainty)
Free speech is a totem of our society:
Okay if Speech is Not disruptive, matter of public concern and does not impinge on the rights of others |
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Term
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Definition
Is there a duty?
1. Special Relationship
2. Palsgraf:
*Cardozo:
---Foreseeable Harm
---Foreseeable P
*Andrews:
---Direct Cause Theory |
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Term
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Definition
What was the duty?
*Ordinary Standard of Care -> Vaugh v. Menlove
1. Emergency
2. Calculate Liability
---a. D= duty breached (neg) if harm is foreseeable and unreasonable
---b. Learned Hand Formula: B< LxP -- U.S. v. Carroll Towing
*Child Standard of Care
1. Adult activity (locale, ex. Hunting in Arkansas)
2. Inherently dangerous
*Physician Standard of Care --Shilkret v. Annapolis
1. Strict Locality (min)
2. Similar Locality (GP)
3. National (hospital/specialist)
*Statutory Negligence
1. Negligence per se
--Majority: Unexcused violation -- Martin v. Herzog
1. P suffers a harm the statute intended to prevent
2. P is in the class that the statute meant to protect
2. Minority: Presumption of negligence
3. Tiny Minority: Evidence of negligence
4. Excuses
1. C- confusing. The statute itself is confusing
2. H-harm sustained by complying will be greater than non-compliance
3. A-attempt to comply, but can't
4. I-ignorance
5. R-reasonable (infancy, handicap)
*Custom
-Evidence of standard of care, custom is NOT conclusive
-Custom = standard of care phys. |
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Term
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Definition
A. D fails to adhere to standard of care → state why?
B. if no direct evidence = Res Ipsa Loquitur → Byrne v. Boadle
o 1. Maj: permissive inference
o 2. Min- rebuttable presumption |
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Term
CAUSE
(actual and proximate overview) |
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Definition
Actual cause:
A. “but for” Test
B. Multiple cause:
o 1. Substantial factor: use where each D could have caused ALL harm…but cannot be proved.
o 2. joint tortfeasors:
• a. independent tortfeasors: joined to cause harm → Summers v. Tice
• b. jointly cause harm: (express/implied)
o 3. Joint enterprise
C. Loss of chance:
o Min: survival rate greater than 50%: recover 100%
o Maj: all loss of chance is a loss needed to be compensated. Based on %.
Proximate Cause:
A. direct cause ( In re Polemis)
o 1. In time and space
o 2. Not based on foreseeability
B. foreseeability: (palsgraf)
o 1. Foreseeability harm unforeseeable way – D liable
o 2. Foreseeable harm extraordinary severity –D liable
o 3. Rescuers = foreseeable
C. subsequent causative factors:
o 1. Intervening → D liable
• a. Med mal is always foreseeable/ neg
• b. exception if unforeseeable
o 2. Superseding → D NOT liable
• a. exception if foreseeable
• b. criminal/intentional-wanton disregard. |
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Term
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Definition
*Slam dunk--P was injured
*• Slam dunk
*• Loss of chance:
o CL: survival rate greater than 50%: recover 100%. Less than 50% you get 0%. Bc P cannot preponderate.
o Modern: all loss of chance is an asset a loss needed to be compensated. (split)
• Majority: Based on the percent. Preponderate you get 100%.
• Minority: 100% if any loss of chance. You don’t have to preponderate...ex. can prove only that your loss of chance was 22%, then 100% |
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Term
Defenses to Negligence
(Broadly) |
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Definition
• Contributory: if P a little liable → No recovery
• Comparative:
o Pure-- P can recover for up the percent found liable (if 99% liable, they can recover 1%)
o Incomplete/Imperfect--P over 50% liable=no recovery
• Assumption of Risk:
o Stand alone:
o Fold into/subsumed comparative neg.
• Vicarious liability
• Mitigation of damages
• Market share liability:
• Seat-belt law:
• Avoidable consequences: actions P can take to avoid harm
o helmet |
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